The Employment of Non-Citizens Act 2007 replaced the 1978 Act of the same name. It regulates the employment of non-citizens through a work permit system administered by the Secretary of the Department responsible for labour.
Section 1 — the purpose of the Act
The purpose is to provide a balance between the needs of the economy for foreign labour and the aspirations of Papua New Guineans for decent work, by:
(a) assisting business to attract and retain qualified, skilled and experienced non-citizens without unnecessary impediments; and
(b) promoting a work permit system that contributes to the creation of employment, training and skills-acquisition opportunities for all Papua New Guineans.
Both limbs matter in practice. Paragraph (b) is why the Secretary may take into account, on a renewal, the commitment of the employer to the training and development of Papua New Guineans.
Section 6 — the prohibition, and three offences
| Who | Offence | Maximum fine |
|---|---|---|
| The employer | Employing a non-citizen in an occupation without a valid work permit granted to that employer, for that non-citizen, in that occupation | K20,000.00 |
| The non-citizen employee | Being employed without such a permit | K10,000.00 |
| A self-employed non-citizen | Working in an occupation without a permit granted to them for it | K10,000.00 |
The permit must be valid, and it must match this employer, this non-citizen and this occupation. Under section 10(2) a work permit is not transferable in respect of any of the three. Changing employer, or moving to a different occupation with the same employer, requires a new permit — see types of work permit.
Section 3 — the wide definition of “employment”
(a) employment under a contract of service;
(b) services provided under a contract for service (including consultancy arrangements);
(c) self-employment;
(d) voluntary employment, including for a religious, charitable or non-government organisation; and
(e) temporary, part-time and casual employment.
“Employ” and “work” have corresponding meanings.
This is deliberately much wider than the Employment Act (Chapter 373), which turns on a contract of service. Here, consultants, contractors, volunteers, missionaries, NGO staff and self-employed people are all within the Act. The employee-or-contractor distinction does not provide a way around it.
- “Non-citizen” — a person other than an automatic citizen or a naturalised citizen.
- “Occupation” — any profession, art, business, trade, calling, following or occupation, including service for a religious or charitable organisation.
- “Dependent” — a spouse not living apart under a court decree or deed of separation, and an unmarried child under 21. “Spouse” includes a de facto husband or wife.
- “Place of origin” — a town or city in a country to which the non-citizen has right of entry and residence. This drives repatriation.
- “Commercial” — wholly or primarily for profit. “Volunteer” — wholly or primarily for reward other than profit.
And section 3(2): a non-citizen or self-employed non-citizen is deemed to be employed in the country notwithstanding that the employment is carried on partly within and partly outside the country.
Section 5 — who the Act does not apply to
- a non-citizen employed within a Public Authority as defined in the Public Employment (Non-citizens) Act (Chapter 342);
- a person employed as official personal staff under the Official Personal Staff Act 1980;
- the Diplomatic Corps (other than non-citizens engaged locally), covered by the Diplomatic and Consular Privileges and Immunities Act 1975;
- staff of organisations granted designated aid status under the Aid Status (Privileges and Immunities) Act 1977 (other than those engaged locally);
- a person granted a Resident (Long Term) entry permit under the Migration Act (Chapter 16); and
- a person granted a Restricted Employment Visa under the Migration Regulation.
The Act also does not apply to an employer or employee exempted under section 51 — the Minister, acting on the Secretary’s advice, may exempt a person or class by National Gazette notice, unconditionally or on conditions, and the notice shall state the reasons.
Non-citizens engaged locally by a diplomatic mission or an aid-status organisation are not exempt. They need permits like anyone else.
The Official Personal Staff Act 1980, the Diplomatic and Consular Privileges and Immunities Act 1975 and the Aid Status (Privileges and Immunities) Act 1977 are not carried in the PacLII Papua New Guinea databases. They are named here rather than linked, so that no unverified link is given.
Section 2 — the constitutional declaration
Section 2 declares that, to the extent the Act regulates or restricts a qualified right under Subdivision III.3 of the Constitution — freedom from arbitrary search and entry (s 44), freedom of employment (s 48), privacy (s 49), freedom of information (s 51) and freedom of movement (s 52) — it is a law made for the purposes of complying with section 38, taking account of the National Goals and Directive Principles and giving effect to the public interest in public welfare.
Section 2(2) declares, for the purposes of section 41 of the Organic Law on Provincial Governments and Local-level Governments, that the law relates to a matter of national interest.
Section 54 — a permit does not displace other law
(1) A work permit does not of itself relieve an employer or a non-citizen from compliance with any other law.
(2) Compliance with any other law applying to them is deemed to be a condition of every work permit granted under this Act.
So the Employment Act (Chapter 373), the Migration Act (entry permits), tax law and professional registration all continue to apply — and a breach of any of them is a breach of a permit condition, which is itself an offence under section 11(2) carrying a fine up to K10,000.00 and a ground for cancellation.
Sources
- Employment of Non-Citizens Act 2007 — ss 1–6, 10, 11, 51, 54
- Employment Act (Chapter 373)
- Migration Act (Chapter 16)
- Public Employment (Non-citizens) Act (Chapter 342)
- Constitution — ss 38, 44, 48, 49, 51, 52
Before relying on anything here, read the current text of the Employment Act (Chapter 373) and check for later amendments. If a decision matters to you, get advice — start with the Office of the Public Solicitor, or find a firm in the law firms directory.